Kerala High Court
Union Of India vs Susamma Chandy on 30 August, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 5TH DAY OF JUNE 2013/15TH JYAISHTA 1935
WA.No. 164 of 2011 ( ) IN OP.25493/2002
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AGAINST THE UDGMENT IN OP 25493/2002 of HIGH COURT OF KERALA
DATED 30-08-2010
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APPELLANTS/PETITIONERS.:
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1. UNION OF INDIA,
REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE
CENTRAL SECRETARIAT, NEW DELHI.
2. THE DIRECTOR GENERAL, INFANTRY,
ARMY HEAD QUARTERS, 2A/3, ASAF ALI ROAD
KUNDAN MANSION, DELHI.
3. THE DIRECTOR OF EMPLOYMENT EXCHANGE,
MINSITRY OF LABOUR (DGE & T) EX-SERVICEMAN, 2A/3
ASIF ALI ROAD, KUNDAN MANSION, DELHI.
4. THE DIRECTOR, MADRAS REGIMENT,
ABISHEK KARALAYA, RECORDS POST BAG NO.1, WELLINGTON
NILAGIRI, TAMILNADU
5. THE DIRECTOR GENERAL OF RESETTLEMENT,
MINISTRY OF DEFENCE, THE ZILLA ZAINIK BOARD
ALAPPUZHA.
BY ADVS.SRI.CYRIAC KURIAN
SRI.P.MURALEEDHARAN, CGC
RESPONDENT/PETITIONER.:
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SUSAMMA CHANDY,
D/O. MATHAI CHANDI, AGED 29, SOONIYAPALI HOUSE
VENMAZHY, PANDANADU P.O., CHANGANNUR PIN 689506.
BY ADV. SRI.S.MUHAMMED HANEEFF
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27.05.2013,
THE COURT ON 05-06-2013 DELIVERED THE FOLLOWING:
VK
Manjula Chellur, C.J. &
K.Vinod Chandran, J.
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W.A.No.164 of 2011
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Dated this, the 5th day of June, 2013
JUDGMENT
K.Vinod Chandran,J.
The Union of India along with its Departments are before us in appeal, challenging the judgment of the learned Single Judge directing the appellants herein to provide the respondent with an employment under the Compassionate Employment Scheme, if necessary, by creating a supernumerary post.
2. We notice that the genesis of the claim and the attempt to enforce the claim are very much distant in time; the former being the death of the respondent's father in the year 1972 and the later being the claim for compassionate appointment made by the respondent in the year 1997. There is no dispute that the respondent's father died in harness while serving in the Madras Regiment of the Indian Army in the year 1972. Going by the specific averment of the petitioner in the writ petition that she was 29 years old in 2002, we have to understand that the respondent was a mere infant at the time of her father's death. Employment assistance was sought for, for the first time, on 3.4.1997, which application was W.A.No.164 of 2011 - 2 - returned to the respondent for re-submission in the proper form, accompanied by supporting documents and it is averred that the same was done on 31.05.1997. By Exhibit P1 dated 19.6.1997, the 4th respondent forwarded the same to the 2nd respondent, the application being registered under Priority-II(A), as evidenced by Exhibit P2.
3. On the respondent not receiving any appointment, she approached this Court, initially in the year 2001 by W.P.(C).No.14558 of 2001, which was disposed of by Exhibit P3. Exhibit P3 directed consideration of her application and to intimate the present position of her application within a period of two months. The respondent having received neither intimation nor appointment, was before this Court with C.C.C.No.624 of 2002. The contemnor appeared and produced Exhibit R2 dated 12.08.2002. Exhibit R2 informed the respondent that though her claim has been registered under Priority-II(A) category, since no vacancies were notified by the Central Ministries/Departments, she could not be accommodated. It was also categorically stated that the Director General of Employment and Training (DGET) cannot just provide a job, especially since the respondent had become over-aged for Central Government employment. The contempt case, hence, was closed. W.A.No.164 of 2011 - 3 -
4. The respondent then challenged Exhibit R2, produced in the contempt petition, in the instant writ petition as Exhibit P5, which led to the impugned judgment, from which the instant appeal arises.
5. As noticed by us, the death of the respondent's father was in the year 1972 and there is no claim made by either the mother or any other dependants for compassionate appointment at that point or at any reasonable period from the death. The respondent first approached the authority for a compassionate appointment when she was aged 24 and had also obtained a Diploma in Electronics. It is trite that compassionate appointments are exceptions to the general rules and regulations involving appointment to public service; with a view to enable the family of the deceased employee to tide over the expedient circumstances caused by the loss of earning and to ensure that the death of the employee does not result in his/her family being thrown to the streets. Though such exceptions have been recognized, the Supreme Court has many a time cautioned the authorities in granting such appointment at a point very distant from the death of the employee, since then the expediency, which is the rationale behind such exception, is no more there. We notice the decision of the Hon'ble Supreme Court in Umesh Kumar Nagpal v. W.A.No.164 of 2011 - 4 - State of Haryana [(1994) 4 SCC 138] which has held that such appointment on compassionate grounds for reason of an employee dying in harness is to enable the penurious family to tide over the immediate financial crisis. It cannot be granted after very number of years for the simple reason that the immediate need would have then been extinguished and giving such appointment would be against public policy, since otherwise the post would be offered to a candidate from the open market. Such employment has been held to be an exception to constitutional provisions contained in Articles 14 and 16 of the Constitution, brought in only with the object of providing immediate succour to the family to overcome sudden financial crisis and not to confer any status on the family [State of Gujarat v. Arvindkumar T.Tiwari (2012) 9 SCC 545; Union of India v. Shashank Gowami (2012) 11 SCC 307].
6. Keeping the above principles in the background, we have to consider the claim raised by the respondent. The claim, on facts, is definitely belated and goes out of the rationale behind the appointments extended on compassionate grounds to the dependents of employees who died in-harness. The learned counsel for the respondent would strenuously urge that it was all along submitted by the appellants/official respondents that the respondent W.A.No.164 of 2011 - 5 - would be considered and only at the point of Exhibit P5, the question of crossing the age limit was mentioned. We notice that there was never a finding on merits entered as to the entitlement of the respondent to be considered for compassionate appointment. Even in the earlier round of litigation, by Exhibit P3 this Court directed only consideration and intimation of the present position of the application made by the respondent. The contempt filed alleging violation of the said judgment was closed on Exhibit P5 being produced as Exhibit R2 by the official respondents therein. Considering Exhibit P5, it cannot be said that the same is arbitrary or that it visits the respondent with gross illegality. The mere registration of the claim of the respondent in Priority-II(A) does not lead to inference of recognition of her claim, especially since the same is subject to vacancies arising in the various departments of the Central Government. The respondent also does not have a claim that an application was made at a time proximate to the death of her father or at least immediately after the respondent had attained majority. It is also pertinent that the application was first made when the respondent was aged 24 and the appellants herein had made it very clear in Exhibit P5 that the provision of a job for the respondent who is over-aged cannot be made for the mere asking.
W.A.No.164 of 2011 - 6 -
In the circumstances detailed above, we are of the opinion that the respondent cannot be declared as a person entitled to compassionate appointment by reason of the death of her father in-harness in the year 1972 by creation of a supernumerary post. The appellants had registered her name under Priority-II(A) and no appointment was granted for the sole reason of no vacancy arising, wherein an over-aged person would be accommodated. We are unable to sustain the judgment of the learned Single Judge and we reverse the same and allow the appeal, however, leaving the parties to suffer their respective costs.
Sd/-
Manjula Chellur, Chief Justice Sd/-
K.Vinod Chandran,
vku/ Judge
( true copy )